Bushell and Secretary, Department of Social Services (Social services second review)

[2016] AATA 710

Bushell and Secretary, Department of Social Services (Social services second review) [2016] AATA 710 (15 September 2016)

Division	GENERAL DIVISION
File Number(s)	2016/1524
Re	Michael Bushell
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	15 September 2016
Place	Sydney

The decision under review is affirmed.

................................[sgd]........................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – application rejected by Centrelink – whether impairments permanent – whether impairments fully diagnosed, treated and stabilised – impairment tables – mental health condition awarded 10 points under Table 5 – spinal condition not permanent – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) sub 94(1)(b)
Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr L Bygrave, Member

15 September 2016

1. On 28 May 2015, Mr Michael Bushell lodged a claim for the disability support pension.

2. The claim was rejected by Centrelink, both initially and on review, on the basis that Mr Bushell did not satisfy the requirements of s 94 of the Social Security Act 1991 (Cth) (the Act).

3. In a decision dated 17 February 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal found that Mr Bushell did not satisfy sub 94(1)(b) of the Act and so he did not qualify for the disability support pension.

4. On 24 March 2016, Mr Bushell applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.

5. The matter was heard in Sydney on 16 August 2016. Mr Bushell was self-represented and attended the hearing by telephone.

   RELEVANT LEGISLATION AND ISSUES

6. Section 94(1) of the Act provides that a person qualifies for the disability support pension if:

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)the person has a continuing inability to work as defined in s 94(2) of the Act.

7. In accordance with the requirements of the Social Security (Administration) Act 1999 (Cth) (Administration Act), to qualify for the disability support pension, Mr Bushell must satisfy the requirements of s 94 of the Act as at the date of his claim or within 13 weeks of lodging the claim, that is between 28 May 2015 and 27 August 2015 (the claim period).

8. The Respondent concedes and the Tribunal agrees that Mr Bushell suffers medical conditions that cause impairment and therefore, he satisfies sub 94(1)(a) of the Act at the time of his claim for disability support pension.

9. It follows that the determinative issues in this matter are whether, during the claim period, Mr Bushell had:

   (a)an impairment rating of 20 points or more under the Impairment Tables; and

   (b)a continuing inability to work as defined in s 94(2) of the Act.

   Does Mr Bushell have medical conditions that can be rated at 20 points or more under the Impairment Tables?

10. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. As set out in para 6(4) of the Impairment Tables Determination, a condition is permanent if it:

    ·has been fully diagnosed by an appropriately qualified medical practitioner; and

    ·has been fully treated; and

    ·has been fully stabilised; and

    ·is more likely than not to persist for more than two years.

11. The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.

12. The Introduction to each relevant Table requires that ‘self-report of symptoms alone is insufficient’ and ‘there must be corroborating evidence of the person’s impairment’.

13. Relevantly, the Introduction to Table 5 of the Impairment Tables Determination, which is to be used where a person has a permanent condition resulting in functional impairment due to a mental health condition, also states that the diagnosis of the condition ‘must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)’.

14. Mr Bushell’s medical report for disability support pension completed by Dr Francis Antonio (General Practitioner) on 27 May 2015 listed medical conditions as ‘anxiety / depression / social phobia’, and set out ‘asthma, sleep apnoea and hepatitis c pos’ as conditions that are generally well managed and cause minimal impact on Mr Bushell’s ability to function.

15. The claim form for disability support pension completed by Mr Bushell on 27 May 2015 stated his disabilities are ‘depression, anxiety, panic attacks, social phobia, asthma, hay fever, sleep apnoea, bad back’. He also set out that he was expected to have a colonoscopy procedure in November 2015.

16. Relying on all the medical evidence before me, I consider Mr Bushell’s medical conditions for the purposes of his claim for disability support pension are:

    ·anxiety, depression and social phobia – mental health condition;

    ·back – spinal condition; and

    ·other conditions including asthma, hay fever, sleep apnoea and hepatitis c.

17. I now consider each of these medical conditions and their relevant rating under the Impairment Tables.

    Mental health condition

18. Dr Antonio, in a medical report for disability support pension dated 27 May 2015, diagnosed Mr Bushell with anxiety, depression and social phobia, which is treated by medication and counselling.

19. On 8 December 2015, Dr Antonio reported that Mr Bushell has suffered from disabling anxiety and depression since 2010, and observed that he ‘is unable to concentrate on tasks for more than a few minutes unless it involves only watching TV programs’.

20. A further report by Dr Antonio dated 27 May 2016 referred to Table 5 of the Impairment Tables and described Mr Bushell’s functional activities during the claim period as follows:

    …at that time he was living independently but with the assistance of a live-in friend. He travels alone only in familiar areas such as doctor’s appointments ans [sic] shopping. He reports very limited social contacts as he has great difficulty making new friends. He has difficulty remaining focussed [sic] on task completion such as housework. His anxiety has led to frequent pervasive pessimistic thoughts touching on paranoia. As he is unable to concentrate he will have difficulty attending at work training on an ongoing regular basis.

21. As required by the Impairment Tables Determination, Mr Bushell’s mental health condition also has been diagnosed by two ‘appropriately qualified’ practitioners:

    (a)Dr Rosalie Wilcox (General and Forensic Psychiatrist) reported on 12 December 2012 that Mr Bushell was ‘very anxious’ and ‘depressed with low mood, poor sleep, impaired motivation and marked anhedonia’.

    (b)A report by Ms Trish Kenny (Clinical Psychologist) dated 1 October 2015 diagnosed ‘an adjustment disorder with depression and anxiety features…in the low moderate range’. Ms Kenny described the impact of Mr Bushell’s condition as follows:

    Michael has complied with keeping a CBT activity diary but shows evidence of minimally active days and poor sleeping hours / rhythm. Michael has engaged with the Ex Railway Workers social club inclusive of meetings and lunch opportunities at fortnightly intervals, and has expressed enjoyment with this. Michael also attends clubs for meals and to watch bands, and attends community markets and events from time to time.

22. At the Tribunal hearing, Mr Bushell said that he resides with a housemate and they share household expenses and chores. His housemate mows the lawn and Mr Bushell tries to clean the house but tires quickly.

23. Mr Bushell told the Tribunal that he does not require his housemate to assist or care for him but likes the company of another person. Mr Bushell said that he spends his time watching TV and may read the local paper or junk mail. He drives his housemate to the shops but only leaves the house every one-two weeks when he does grocery shopping, goes to the Centrelink office, or attends a monthly lunch at the Ex Railway Workers social club. He drinks alcohol at home but tries to limit this to weekends as it exacerbates his depressive symptoms. He does not cook but eats ‘frozen meals’.

24. Based on the evidence before me, I am satisfied that Mr Bushell’s mental health condition was fully diagnosed, fully treated and fully stabilised during the claim period. I have regard to the information at Table 5 – Mental Function and am satisfied that Mr Bushell’s mental health condition has a moderate functional impact on activities involving his mental health function and I assign an impairment rating of 10 points. I also find that an impairment rating of 20 points is not appropriate for Mr Bushell’s mental health condition because:

    ·he was able to live independently in a shared house arrangement and care for himself with minimal support;

    ·there was no evidence presented to the Tribunal from a clinical psychologist or psychiatrist to show he had ‘significantly and frequently disturbed’ behaviour or thoughts; and

    ·he was able to concentrate for an extended period of time as demonstrated by his attendance and participation in a two-hour telephone hearing with the Tribunal.

    Spinal condition

25. The claim form for disability support pension completed by Mr Bushell on 27 May 2015 stated ‘bad back’. However, Mr Bushell told the Tribunal at the hearing that his back had ‘been okay since he stopped work’.

26. As there is no medical evidence to support this claim, I find that Mr Bushell’s spinal condition was not permanent at the date of the claim period and so I cannot assign an impairment rating.

    Other conditions

27. The medical report for disability support pension by Dr Antonio on 27 May 2015 listed Mr Bushell as having ‘asthma, sleep apnoea and hepatitis c pos’ conditions, which are ‘generally well managed and that cause minimal or limited impact on ability to function’.

28. Mr Bushell told the Tribunal that his asthma is controlled by preventative and reliever medication, and his sleep apnoea is managed by a CPAP breathing machine.

29. Apart from Dr Antonio’s report dated 27 May 2015, there is no other medical evidence before the Tribunal regarding these other conditions. While the Impairment Tables Determination requires a condition to be ‘fully diagnosed’ by an ‘appropriately qualified medical practitioner’, I accept that these conditions are fully diagnosed, treated and stabilised given Mr Bushell takes medication for his asthma and uses a CPAP breathing machine for his sleep apnoea.

30. In accordance with the information at Table 1 – Functions requiring Physical Exertion and Stamina, there is no evidence before the Tribunal to find that these conditions have any functional impact on Mr Bushell. I therefore assign an impairment rating of 0 points for these conditions.

    CONCLUSION

31. For the reasons set out above, I am satisfied that Mr Bushell did not meet the requirements of sub 94(1)(b) of the Act during the claim period as his impairments were not 20 points or more under the Impairment Tables.

32. As I find that Mr Bushell did not qualify for the disability support pension during the claim period, it is not necessary for me to consider whether he had a continuing inability to work.

33. If Mr Bushell’s medical conditions change, he is entitled to submit a new application for disability support pension at any time.

    DECISION

34. The Tribunal affirms the decision under review.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...............................[sgd].........................................

Associate

Dated 15 September 2016

Date(s) of hearing	16 August 2016
Applicant	By telephone
Solicitors for the Respondent	Department of Human Services